What would happen to the people in your care if you passed away unexpectedly? If you’re the parent of minor children or adult children with special needs, providing for them is a critical part of estate planning. Learn about guardianship and conservatorship considerations so you can make plans for your loved ones.
Guardianship vs Conservatorship: What’s the Difference?
People may use the terms “guardianship” and “conservatorship” interchangeably in some situations, but they can have different meanings under state law.
- A guardianship generally involves authority to make day-to-day decisions for a person’s care and the duty to provide this care.
- A conservatorship generally refers to the legal authority to make financial decisions for a person.
In some states, the term “guardian” may be used for minor children while “conservatorship” is used for adults with special needs. However, in Oregon, both guardianships and conservatorships may be applied to minors and incapacitated adults, and a person may serve as both a guardian and a conservator.
Important Considerations for Parents
If you are the parent of a minor child, you can nominate someone to act as guardian if you pass away. This is typically done as part of your will.
If you are the parent of a special needs child who is 18 or older, or who is about to turn 18, and is considered incapacitated under state law, you can apply for conservatorship and guardianship so you can continue to provide care. This is done with the Oregon Judicial Branch, and a lawyer can help you with the process. Additionally, you can use your will to nominate someone to serve as guardian.
Selecting a Guardian or Conservator
Choosing a guardian or conservator is a major endeavor. If anything happens to you, this person will be in charge of providing care and managing finances. Not everyone is up to the task.
In Oregon, anyone who is interested in the welfare of the child or incapacitated person may serve as a guardian and/or conservator, although they will have to answer questions about things like convictions and bankruptcy. This gives you the freedom to use your best judgment to select a conservator or guardian.
- Who can you trust? You need to be confident that the person you choose will put your child’s interests first, and that they have the experience and good judgment necessary to provide quality care and to make wise financial decisions. Think long and hard about whether you can trust an individual in this way.
- Who is willing? You can’t force someone to serve as a guardian or conservator. The person you want for the role may decline, either because they feel they are unable to fulfill the duties required or because they simply don’t want to. The best way to find out if someone is willing is to have a serious conversation with that person.
- Who is your child comfortable with? The death of a parent is very traumatic for a child or special needs adults, and the situation can be even more difficult if they don’t get along with the new caregiver. The transition will be easier, and with less risk of legal battles and other types of friction, if the minor or incapacitated adult is comfortable with the person you have chosen.
How Will Care Be Funded?
Another important consideration involves funding for care.
Being the guardian of a child or adult with significant medial needs can be very expensive. Some people may be willing to do the work involved but unable to afford the costs. Programs like Social Security may provide some assistance, but to ensure a high quality of life, you may want to provide additional funds. It’s important to go about this in the right way.
A minor child can inherit money and other assets, but they won’t be able to manage the inheritance themselves until they turn 18. Likewise, a minor will not be able to control funds from a life insurance policy.
Instead of naming a minor or incapacitated adult as a beneficiary, you can create a trust, and fund this trust with either your assets or a life insurance policy that names the trust as a beneficiary. This strategy also gives you greater control over how the funds can be used.
What to Do Next
If you have a minor child or adult who depends on you for care or financial management, it’s important to tackle your estate plan to ensure that care will continue regardless of what happens to you.
Here’s what you can do:
- Request to be appointed as guardian or conservator. If you’re currently caring for an incapacitated adult, you can petition the court for official recognition and authority.
- Decide who to nominate as guardian or conservator in your will. You can name a backup person in case your first choice is unable to take on the role when and if the time comes. Make sure you talk to these people to see if they are willing and able, to explain what’s involved, and to answer any questions they may have.
- Work with an estate planning lawyer to make sure your wishes are legally documented. In addition to a will that nominates that guardian or conservator, you may also need to set up a trust and purchase life insurance.
- Review your estate plan periodically. From time to time, you may need to check in with the people you have nominated to make sure they are still up for the role. If their circumstances have changed, they may have to back out, and it’s good to know this so you can make other arrangements. You may also need to update your life insurance beneficiary designations.
Do you need help with conservator or guardianship considerations in Oregon? Contact Skinner Law.